Less Guilty by Reason of Adolescence

Developmental Immaturity, Diminished Responsibility,

and the Juvenile Death Penalty

Laurence Steinberg Temple University

Elizabeth S. Scott University of Virginia School of Law

The authors use a developmental perspective to examine of whom, Lee Malvo, was 17 years old, prosecutors viedquestions about the criminal culpability of juveniles and for the right to try the case in their jurisdiction. It wasthe juvenile death penalty. Under principles of criminal widely speculated that Attorney General Ashcroft selectedlaw, culpability is mitigated when the actor’s decision- Virginia as the venue, in large part, because that jurisdic-making capacity is diminished, when the criminal act was tion permits the execution of juveniles, whereas Maryland,coerced, or when the act was out of character. The authors where the majority of the killings took place, does notargue that juveniles should not be held to the same stan- (Lichtblau, 2002). Thus, this highly publicized case hasdards of criminal responsibility as adults, because adoles- focused national attention on the debate over the juvenilecents’ decision-making capacity is diminished, they are death penalty.less able to resist coercive influence, and their character is The juvenile death penalty is a critically importantstill undergoing change. The uniqueness of immaturity as a issue in juvenile crime policy, but it is not our sole focus inmitigating condition argues for a commitment to a legal this article. We are interested in the broader question ofenvironment under which most youths are dealt with in a whether juveniles should be punished to the same extent asseparate justice system and none are eligible for capital adults who have committed comparable crimes. Capitalpunishment. punishment is the extreme case, but in practical effect, it is not the most important one in an era in which youth crime policy has become increasingly punitive. The question of

S whether juveniles should be punished like adults is impor- ince 1990, only a handful of countries in the tant to discussions about sentencing guidelines, the transfer world—Congo, Iran, Yemen, Saudi Arabia, Paki- of juvenile offenders into the adult criminal justice system, stan, Nigeria, and the United States— have exe- and the incarceration of juveniles in adult facilities (Fagancuted individuals whose crimes were committed when they & Zimring, 2000). High-profile murder cases, like thosewere juveniles (Bradley, 2002; de la Vega, 2002). Twenty- involving Lee Malvo or Lionel Tate, the Florida 14-year-one states in the United States allow the execution of old who was sentenced to life in prison for killing aindividuals under the age of 18, and in most of these states, playmate during a wrestling match, generate public atten-adolescent offenders as young as 16 can be sentenced to tion to these matters (e.g., Browning, 2001), but questionsdeath (Streib, 2002). The United States Supreme Court has about the appropriate punishment of juvenile offendersheld that the death penalty is unconstitutional for youths arise in many less visible cases, including those involvingwho are under 16 at the time of their offense (Thompson v. nonviolent crimes such as drug selling (Clary, 2001).Oklahoma, 1998) but has declined to categorically prohibit In this article, we draw on research and theory aboutcapital punishment for 16- and 17-year-olds (Stanford v. adolescent development to examine questions about theKentucky, 1989). criminal culpability of juveniles. Recent shifts in juvenile Several events have occurred recently that, considered justice policy and practice toward the harsher treatment oftogether, suggest that it is time to reexamine the constitu- youthful offenders are grounded in concerns about publictionality of the juvenile death penalty. First, in Atkins v. protection and the belief that there is no good reason toVirginia (2002), the Supreme Court ruled that the execu-tion of mentally retarded offenders violates the U.S. Con- exercise leniency with young offenders. This view rejectsstitution; some of the reasons offered by the Court for theban may also apply to the capital punishment of juveniles. Laurence Steinberg, Department of Psychology, Temple University; Eliz-Second, following the Atkins decision, three Supreme abeth S. Scott, University of Virginia School of Law.Court justices took the unusual step of urging reconsider- Work on this article was supported by the John D. and Catherine T.ation of the constitutional status of the juvenile death MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice, of which the authors are members.penalty, suggesting considerable dissatisfaction at the high- Correspondence concerning this article should be addressed to Lau-est level with current doctrine (Lane, 2002). Finally, after rence Steinberg, Department of Psychology, Temple University, Philadel-the apprehension of the Washington-area serial snipers, one phia, PA 19122. E-mail: lds@temple.edu

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Copyright 2003 by the American Psychological Association, Inc. 0003-066X/03/$12.00Vol. 58, No. 12, 1009 –1018 DOI: 10.1037/0003-066X.58.12.1009 legal parlance, excuse refers to the complete exculpation of a criminal defendant; he or she bears no responsibility for the crime and should receive no punishment. Not surpris- ingly, defenses that excuse actors altogether from criminal liability are very narrowly drawn. For example, crimes committed under extreme duress may be excused— one who acts with a gun to one’s head, for instance—whereas crimes committed under less stressful conditions would not (Robinson, 1997; Wasik, 1977). Unlike excuse, which calls for a binary judgment— guilty or not guilty—mitigation places the culpability of a guilty actor somewhere on a continuum of criminal culpability and, by extension, a continuum of punishment. Thus, mitigation is a consider- ation when a harmful act is sufficiently blameworthy to meet the minimum threshold of criminal responsibility, but the actor’s capacities are sufficiently compromised, or the circumstances of the crime sufficiently coercive, to warrant less punishment than the typical offender would receive. For example, mental illness that distorts an individual’s decision making, but that is not severe enough to supportLaurence an insanity defense, can reduce the grade of an offense orSteinberg result in a less punitive disposition (Bonnie et al., 1997). The public debate about the criminal punishment of juveniles is often heated and ill-informed, in part because the focus is typically on excuse when it should be onthe conventional wisdom behind traditional juvenile justice mitigation. It is often assumed, in other words, that the onlypolicy and challenges those who support reduced punish- alternative to adult punishment of juveniles is no punish-ment for juveniles to justify a separate, more lenient justice ment at all— or a slap on the hand. Instead, we argue thatregime for young offenders. We accept this challenge, and the developmental immaturity of adolescence mitigateswe argue that emerging knowledge about cognitive, psy- culpability and justifies more lenient punishment, but that itchosocial, and neurobiological development in adolescence is not, generally, a basis for excuse— except in the case ofsupports the conclusion that juveniles should not be held to very young, preadolescent offenders. That is, a juvenilethe same standards of criminal responsibility as adults. offender, owing to his or her developmental immaturity,Under standard, well-accepted principles of criminal law, should be viewed as less culpable than a comparable adultthe developmental immaturity of juveniles mitigates their offender, but not as an actor who is without any responsi-criminal culpability and, accordingly, should moderate the bility for the crime. The public understandably wants toseverity of their punishment. make sure that juvenile offenders are held responsible forExcuse and Mitigation in the Criminal their crimes, so that other would-be offenders receive aLaw strong message about the costs of crime, and so that the community is protected from those who might offend againThe starting point for our argument is the core principle of (Bennett, DiIulio, & Walters, 1996). A policy based onpenal proportionality—the foundation of any legitimate mitigation can achieve these goals; at the same time, how-system of state punishment (Bonnie, Coughlin, & Jeffries, ever, such a policy recognizes that youths are less culpable1997). Proportionality holds that fair criminal punishment than adults and punishes them less harshly.is measured not only by the amount of harm caused or Criminal law doctrine takes account of excuse andthreatened by the actor but also by his or her blamewor- mitigation in many ways in calculating the seriousness ofthiness. Thus, the question we address is whether, and in offenses and the amount of punishment that is appropriate.what ways, the immaturity of adolescent offenders is rele- For example, defenses such as duress, insanity, and self-vant to their blameworthiness and, in turn, to appropriate defense recognize that actors can cause the harm of thepunishment for their criminal acts. Answering this question offense but be less culpable than the typical offender— or,requires a careful examination of the developmental capac- in extreme cases, not culpable at all (Robinson, 1997).ities and processes that are relevant to adolescent criminal Also, under the law of homicide, punishment for causingchoices, as well as the conditions and circumstances that the death of another varies dramatically depending on thereduce culpability in the criminal law (Scott & Steinberg, blameworthiness of the actor (Michael & Wechsler, 1937).2003). The actor who kills intentionally is deemed less culpable As a preliminary matter, it is important to distinguish when he or she does so without premeditation and delib-between excuse and mitigation, two constructs that are eration. One who kills in response to provocation or underdistinct within the law but that are often blurred in layper- extreme emotional disturbance is guilty only of manslaugh-sons’ discussions of crime and punishment (Hart, 1968). In ter, not murder. And a person who causes a victim’s death

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fulfillment of family obligations, and good citizenship; or, more generally, if the criminal act was aberrant in light of the defendant’s established character traits and respect for the law’s values (United States Sentencing Commission, 1998). Developmental Immaturity and Mitigation Each of the categories of mitigation described in the pre- vious section is important to an assessment of the culpa- bility of adolescents who become involved in crime, and each sheds light on differences between normative adoles- cents and adults. First, and most obviously, adolescents’ levels of cognitive and psychosocial development are likely to shape their choices, including their criminal choices, in ways that distinguish them from adults and that may un- dermine competent decision making. Second, because ad- olescents’ decision-making capacities are immature and their autonomy constrained, they are more vulnerable thanElizabeth S. are adults to the influence of coercive circumstances thatScott mitigate culpability for all persons, such as provocation, duress, or threat. Finally, because adolescents are still in the process of forming their personal identity, their crimi- nal behavior is less likely than that of an adult to reflect badthrough negligence is punished less severely than one who character. Thus, for each of the sources of mitigation inactually intends to kill (Bonnie et al., 1997). Finally, mit- criminal law, typical adolescents are less culpable than areigation plays a key role in sentencing. In most states, adults because adolescent criminal conduct is driven bysentencing guidelines include a list of mitigating factors to transitory influences that are constitutive of this develop-be considered in the determination of the amount of pun- mental stage.ishment the convicted offender should receive. These mit- Deficiencies in Decision-Making Capacityigating factors include traits of the offender and circum-stances surrounding the offense that may reduce culpability It is well established that reasoning capabilities increase(Florida Annotated Statutes, 2001). through childhood into adolescence and that preadolescents In general, factors that reduce criminal culpability can and younger teens differ substantially from adults in theirbe grouped roughly into three categories. The first category cognitive abilities (Keating, 1990). These basic improve-includes endogenous impairments or deficiencies in the ments in reasoning are complemented by increases in spe-actor’s decision-making capacity that affect his or her cific and general knowledge gained through education andchoice to engage in criminal activity. The incapacity— or experience and by improvements in basic information-diminished capacity—may be due to mental illness or processing skills, including attention, short- and long-termmental retardation, extreme emotional distress, or suscep- memory, and organization (Siegler, 1997)tibility to influence or domination (Kadish, 1987). Although few psychologists would challenge the as- Under the second category, culpability is reduced sertion that most adults have better reasoning skills thanwhen the external circumstances faced by the actor are so preadolescent children, it is often asserted that, by mid-compelling that an ordinary (or “reasonable”) person might adolescence, teens’ capacities for understanding and rea-have succumbed to the pressure in the same way as did the soning in making decisions roughly approximate those ofdefendant (Morse, 1994). The extraordinary circumstances adults (Fischhoff, 1992; Furby & Beyth-Marom, 1992).could involve duress, provocation, threatened injury, or Indeed, advocates for adolescent self-determination madeextreme need. A person who commits a crime in response this argument in support of adolescent abortion rightsto these circumstances typically receives less punishment (American Psychological Association, 1990; Melton,than one who commits a comparable crime under less 1983). However, as we and our colleagues have argued incompelling conditions. several recent articles, there is good reason to question The third category of mitigation includes evidence whether age differences in decision making disappear bythat the criminal act was out of character for the actor and mid-adolescence, particularly as capacities may be mani-that, unlike the typical criminal act, his or her crime was fested in the real-world settings in which choices aboutnot the product of bad character. For example, a reduced criminal activity are made (Scott, Reppucci, & Woolard,sentence might result if the crime was a first offense; if the 1995; Steinberg & Cauffman, 1996). Laboratory studiesactor expressed genuine remorse or tried to mitigate the that are the basis of the assertion that adolescents’ reason-harm; if the actor had a history of steady employment, ing ability is equivalent to that of adults are only modestly

December 2003 ● American Psychologist 1011

useful in understanding how youths compare with adults in als become more future-oriented. Studies in which individ-making choices that have salience to their lives or that are uals are asked to envision themselves or their circum-presented in stressful, unstructured settings in which deci- stances in the future find that adults project out their visionssion makers must rely on personal experience, knowledge, over a significantly longer time frame than do adolescentsand intuition (Cauffman & Steinberg, 2000; Scott et al., (Greene, 1986; Nurmi, 1991). In addition, in studies in1995; Steinberg, 2003; Steinberg & Cauffman, 1996). In which individuals are queried about their perceptions of thetypical laboratory studies of decision making, individual short-term and longer term pros and cons of various sorts ofadolescents are presented with hypothetical dilemmas un- risk taking (e.g., the risk of having unprotected sex, Gard-der conditions of low emotional arousal and then asked to ner & Herman, 1990) or asked to give advice to othersmake and explain their decisions. In the real world, and about risky decisions (e.g., whether to have cosmetic sur-especially in situations in which crimes are committed, gery; Halpern-Felsher & Cauffman, 2001), adolescentshowever, adolescents’ decisions are not hypothetical, they tend to discount the future more than adults do and toare generally made under conditions of emotional arousal weigh more heavily short-term consequences of deci-(whether negative or positive), and they usually are made sions— both risks and benefits—in making choices. Therein groups. In our view, it is an open and unstudied question are at least two plausible explanations for this age differ-whether, under real-world conditions, the decision making ence in future orientation. First, owing to cognitive limita-of mid-adolescents is truly comparable with that of adults. tions in their ability to think in hypothetical terms, adoles- More important, even when teenagers’ cognitive ca- cents simply may be less able than adults to think aboutpacities come close to those of adults, adolescent judgment events that have not yet occurred (i.e., events that mayand their actual decisions may differ from that of adults as occur sometime in the future). Second, the weaker futurea result of psychosocial immaturity. Among the psychos- orientation of adolescents may reflect their more limitedocial factors that are most relevant to understanding differ- life experience. For adolescents, a consequence 5 years inences in judgment and decision making are (a) susceptibil- the future may seem very remote in relation to how longity to peer influence, (b) attitudes toward and perception of they have been alive; teens may simply attach more weightrisk, (c) future orientation, and (d) the capacity for self- to short-term consequences because they seem more salientmanagement. Whereas cognitive capacities shape the pro- to their lives (Gardner, 1993).cess of decision making, psychosocial immaturity can af- Third, adolescents differ from adults in their assess-fect decision-making outcomes, because these psychosocial ment of and attitude toward risk. In general, adolescentsfactors influence adolescent values and preferences in ways use a risk–reward calculus that places relatively less weightthat drive the cost– benefit calculus in the making of on risk, in relation to reward, than that used by adults.choices. In other words, to the extent that adolescents are When asked to advise peers on making a potentially riskyless psychosocially mature than adults, they are likely to be decision, for example (e.g., whether to participate in adeficient in their decision-making capacity, even if their study of an experimental drug), adults spontaneously men-cognitive processes are mature (Cauffman & Steinberg, tioned more potential risks than did adolescents (Halpern-2000; Scott et al., 1995; Steinberg & Cauffman, 1996). Felsher & Cauffman, 2001). In addition, experimental stud- There is considerable evidence that the four dimen- ies that use gambling tasks show that, compared with thosesions of psychosocial maturity described in the previous of adults, adolescents’ decisions are more driven by re-paragraph continue to develop during the adolescent years. wards and less by risks (see Furby & Beyth-Marom, 1992).First, substantial research supports the conventional wis- A number of explanations for this age difference havedom that, even in middle adolescence, teenagers are more been offered. First, youths’ relatively weaker risk aversionresponsive to peer influence than are adults. Studies in may be related to their more limited time perspective,which adolescents are presented with hypothetical dilem- because taking risks is less costly for those with a smallermas in which they are asked to choose between an antiso- stake in the future (Gardner & Herman, 1990). Second,cial course of action suggested by their peers and a proso- adolescents may have different values and goals than docial one of their own choosing indicate that susceptibility to adults, leading them to calculate risks and rewards differ-peer influence increases between childhood and early ado- ently (Furby & Beyth-Marom, 1992). For example, thelescence as adolescents begin to individuate from parental danger of some types of risk taking (e.g., driving well overcontrol, peaks around age 14, and declines slowly during the speed limit) could constitute reward for an adolescentthe high school years (Berndt, 1979; Steinberg & Silver- but a cost to an adult. In addition, considerable evidenceberg, 1986). Peer influence affects adolescent judgment indicates that people generally make riskier decisions inboth directly and indirectly. In some contexts, adolescents groups than they do alone (Vinokur, 1971); there is evi-make choices in response to direct peer pressure to act in dence both that adolescents spend more time in groups thancertain ways. More indirectly, adolescents’ desire for peer do adults and, as noted earlier, that adolescents are rela-approval—and fear of rejection—affect their choices, even tively more susceptible to the influence of others.without direct coercion. Peers also provide models for Fourth, although more research is needed, the widelybehavior that adolescents believe will assist them in ac- held stereotype that adolescents are more impulsive thancomplishing their own ends (Moffitt, 1993). adults finds some support in research on developmental Second, it is well established that over an extended changes in impulsivity and self-reliance over the course ofperiod between childhood and young adulthood, individu- adolescence. As assessed on standardized self-report per-

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sonality measures, impulsivity increases between middle moment, suggests that they rob a passer-by to get money toadolescence and early adulthood and declines thereafter, buy beer. The adolescent does not really go through aand gains in self-management skills take place during deliberative decision-making process but “chooses” to goearly, middle, and late adolescence (Greenberger, 1982; along, despite having mixed feelings, because he assumesSteinberg & Cauffman, 1996). Studies using the Experi- that his standing in the group will suffer if he declines toence Sampling Method, in which individuals are paged participate—a negative consequence to which he attachesseveral times each day and asked to report on their emo- considerable weight. Although a more mature person mighttions and activities, indicate that adolescents have more think of options to extricate himself from the situation, therapid and more extreme mood swings (both positive and adolescent may not, because he lacks experience in similarnegative) than adults, which may lead them to act more circumstances, because the choice is made so quickly, orimpulsively (Larson, Csikszentmihalyi, & Graef, 1980). because he has difficulty projecting the course of eventsTaken together, these findings indicate that adolescents into the future. On top of this, the “adventure” of themay have more difficulty regulating their moods, impulses, hold-up and the possibility of getting some money from itand behaviors than do adults. are appealing. These immediate and concrete rewards, Most of the developmental research on cognitive and along with the reward of peer approval, weigh morepsychosocial functioning in adolescence measures behav- heavily in his decision than the abstract and temporallyiors, self-perceptions, or attitudes, but mounting evidence remote possibility of apprehension by the police. The lastsuggests that at least some of the differences between thing the adolescent considers is the long-term costs asso-adults and adolescents have neuropsychological and neu- ciated with conviction of a serious crime.robiological underpinnings. What is most interesting is that The available evidence supports the conclusion that,studies of brain development during adolescence, and of like offenders who are mentally retarded and mentally ill,differences in patterns of brain activation between adoles- adolescents are less culpable than typical adults because ofcents and adults, indicate that the most important develop- diminished decision-making capacity. To some extent, ju-ments during adolescence occur in regions that are impli- rists have acknowledged this. In Thompson v. Oklahomacated in processes of long-term planning, the regulation of (1998), for example, the Supreme Court pointed to theemotion, impulse control, and the evaluation of risk and immature judgment of youth in prohibiting the execution ofreward (Spear, 2000). For example, changes in the limbic juveniles whose offenses occurred before their 16th birth-system around puberty may stimulate adolescents to seek day. Justice Stevens concluded that to impose the deathhigher levels of novelty and to take more risks and may penalty on youths below this age violates the principle ofcontribute to increased emotionality and vulnerability to proportionality:stress (Dahl, 2001). At the same time, patterns of develop-ment in the prefrontal cortex, which is active during the Less culpability should attach to a crime committed by a juvenileperformance of complicated tasks involving long-term than to a comparable crime committed by an adult. The basis of this conclusion is too obvious to require extensive explanation.planning and judgment and decision making, suggest that Inexperience, less intelligence and less education make a teenagerthese higher order cognitive capacities may be immature less able to evaluate the consequences of his or her conduct whilewell into late adolescence (Geidd et al., 1999; Sowell, at the same time he or she is more apt to be motivated by mereThompson, Holmes, Jernigan, & Toga, 1999). emotion or peer pressure than is an adult. The reasons that At this point, the connection between neurobiological juveniles are not trusted with the privileges and responsibilities ofand psychological evidence of age differences in decision- an adult also explain why their irresponsible conduct is not asmaking capacity is indirect and suggestive. However, the morally reprehensible as that of an adult. (Thompson v. Okla-results of studies using paper-and-pencil measures of future homa, 1998, p. 835)orientation, impulsivity, and susceptibility to peer pressurepoint in the same direction as the neurobiological evidence, The Supreme Court decision in Thompson does notnamely, that brain systems implicated in planning, judg- speak explicitly in the language of adolescent developmentment, impulse control, and decision making continue to or support its arguments with scientific research on adoles-mature into late adolescence. Thus, there is good reason to cents’ capacities. Nonetheless, the Court’s pronouncementbelieve that adolescents, as compared with adults, are more can best be understood as a recognition that psychosocialsusceptible to influence, less future oriented, less risk immaturity compromises adolescents’ decision making inaverse, and less able to manage their impulses and behav- ways that mitigate criminal blameworthiness.ior, and that these differences likely have a neurobiological The Court’s recent rejection in Atkins v. Virginiabasis. The important conclusion for our purposes is that (2002) of imposing the death penalty on mentally retardedjuveniles may have diminished decision-making capacity offenders points more explicitly to the mitigating charactercompared with adults because of differences in psychoso- of attributes that characterize adolescent decision makingcial capacities that are likely biological in origin. as well as those of retarded persons: It is easy to see how psychosocial immaturity can Because of their impairments, . . . [mentally retarded offenders]contribute to youthful choices to get involved in crime. have diminished capacities to understand and process informa-Consider the following scenario (adapted from Scott & tion, to communicate, to abstract from mistakes and learn fromGrisso, 1997). An adolescent is hanging out with his experience, to engage in logical reasoning, to control impulses,friends, when one member of the peer group, on spur of the and to understand the reactions of others. There is . . . abundant

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evidence that they often act on impulse rather than pursuant to a the freedom that adults have to extricate themselves from apremeditated plan, and that in group settings, they are followers criminogenic setting (Fagan, 2000).rather than leaders. Their deficiencies do not warrant an exemp- Although plausible inferences can be drawn abouttion from criminal sanctions, but diminish their personal culpa- how developmental influences may affect adolescents’ re-bility. (Atkins v. Virginia, 2002, p. 2250) sponses to external pressures, we do not have sufficient Many factors that influence youthful decision making research comparing the behavior of adolescents and adultsand distinguish adolescents from typical adults are similar at varying levels of duress, provocation, or coercion. Someto those that compromise the criminal choices of actors social psychological research has examined contextual in-who are mentally retarded. Moreover, like offenders who fluences on decision making—for example, the literatureare mentally retarded, there is good reason to believe that on the risky shift, which shows that individuals take morethe deficiencies of adolescent judgment are organic in risks in groups than when alone (Vinokur, 1971)— but thisnature—although, among adolescents, poor judgment is research has not examined whether the impact of differentshaped by transitory developmental factors and, unlike contextual factors varies as a function of the decisionmentally retarded persons, most adolescents will mature maker’s age. Further, as we noted earlier, studies compar-out of their tendency to make unwise choices that are ing the decision making of adolescents with that of adultsdriven by the psychosocial influences. Nonetheless, during have intentionally minimized the influence of contextualadolescence, immature judgment is likely no more subject factors that could affect the decision-making process dif-to the volitional control of the youth than is the poor ferently for individuals of different ages. Recent evidencejudgment of adults who are mentally retarded. on age differences in the processing of emotionally arous- ing information supports the hypothesis that adolescentsHeightened Vulnerability to Coercive may tend to respond to threats more viscerally and emo-Circumstances tionally than adults (Baird, Gruber, & Fein, 1999), but far more research on this topic is needed.The psychosocial immaturity of adolescents contributes totheir diminished capacity (the first category of mitigation), Unformed Character as Mitigationbut it is important to another source of mitigation as well. In addition to the mitigating effects of adolescents’ dimin-As we noted earlier, criminal culpability can be reduced on ished decision-making capacity and greater vulnerability tothe basis of circumstances that impose extraordinary pres- external pressures, youthful culpability is also mitigated bysures on the actor. The criminal law does not require the relatively unformed nature of their characters. As weexceptional fortitude or bravery of citizens and, in general, have noted, the criminal law implicitly assumes that harm-recognizes mitigation where an ordinary (or in legal par- ful conduct reflects the actor’s bad character and treatslance, “reasonable”) person might have responded in the evidence that this assumption is inaccurate as mitigating ofsame way as the defendant under similar circumstances. In culpability (Duff, 1993; Vuoso, 1986). For most adoles-evaluating the behavior of an adolescent in responding to cents, the assumption is inaccurate, and thus their crimesextenuating circumstances, however, the correct basis for are less culpable than those of typical criminals.evaluation is not comparison of the actor’s behavior with The emergence of personal identity is an importantthat of an “ordinary” adult but rather with that of an developmental task of adolescence and one in which the“ordinary” adolescent (In re William G., 1987; Scott & aspects of psychosocial development discussed earlier playSteinberg, 2003). a key role. As documented in many empirical tests of Because of their developmental immaturity, norma- Erikson’s (1968) theory of the adolescent identity crisis,tive (i.e., “ordinary”) adolescents may respond adversely to the process of identity formation includes considerableexternal pressures that adults are able to resist. If adoles- exploration and experimentation over the course of adoles-cents are more susceptible to hypothetical peer pressure cence (Steinberg, 2002a). Although the identity crisis maythan are adults (as noted earlier), it stands to reason that age occur in middle adolescence, the resolution of this crisis,differences in susceptibility to real peer pressure will be with the coherent integration of the various retained ele-even more considerable. Thus, it seems reasonable to hy- ments of identity into a developed self, does not occur untilpothesize that a youth would succumb more readily to peer late adolescence or early adulthood (Waterman, 1982).influence than would an adult in the same situation. Simi- Often this experimentation involves risky, illegal, or dan-larly, if adolescents are more impulsive than adults, it may gerous activities like alcohol use, drug use, unsafe sex, andtake less of a threat to provoke an aggressive response from antisocial behavior. For most teens, these behaviors area juvenile. And, because adolescents are less likely than fleeting; they cease with maturity as individual identityadults to think through the future consequences of their becomes settled. Only a relatively small proportion ofactions, the same level of duress may have a more disrup- adolescents who experiment in risky or illegal activitiestive impact on juveniles’ decision making than on that of develop entrenched patterns of problem behavior that per-adults. In general, legal judgments about mitigation should sist into adulthood (Farrington, 1986; Moffitt, 1993). Thus,consider the extent to which developmentally normal ado- making predictions about the development of relativelylescents are more susceptible to external pressures than are more permanent and enduring traits on the basis of patternsadults. Adolescents’ claim to mitigation on this ground is of risky behavior observed in adolescence is an uncertainparticularly compelling in that, as legal minors, they lack business. At least until late adolescence, individuals’ val-

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ues, attitudes, beliefs, and plans are likely to be tentative assessing the culpability of typical young offenders. In oneand exploratory expressions rather than enduring represen- sense, young wrongdoers are not like adults whose acts aretations of personhood. Thus, research on identity develop- less culpable on this ground. A claim that an adult’s crim-ment in adolescence supports the view that much youth inal act was out of character requires a demonstration thatcrime stems from normative experimentation with risky his or her established character is good. The criminalbehavior and not from deep-seated moral deficiency reflec- choice of the typical adolescent cannot be evaluated in thistive of “bad” character. One reason the typical delinquent manner because the adolescent’s personal identity is in fluxyouth does not grow up to be an adult criminal is that the and his or her character has not yet stabilized. However,developmentally linked values and preferences that drive like the adult offender whose crime is mitigated because ithis or her criminal choices as a teenager change in predict- is out of character, adolescent offenders lack an importantable ways as the youth matures. component of culpability—the connection between a bad The distinction between youthful criminal behavior act and a bad character.that is attributable to characteristics that adolescents out- The fact that antisocial activity in adolescence is notgrow and conduct that is attributable to relatively more usually indicative of bad character also raises importantpermanent elements of personality is captured in Moffitt’s questions about the construct validity of juvenile psychop-(1993) work on the developmental trajectories of antisocial athy, a “diagnosis” that has recently received considerablebehavior. In her view, adolescent offenders fall into one of attention (Edens, Skeem, Cruise, & Cauffman, 2001; Forthtwo broad categories: adolescence-limited offenders, & Burke, 1998; Seagrave & Grisso, 2002; Steinberg,whose antisocial behavior begins and ends during adoles- 2002b). Labeling an individual as a psychopath—perhapscence, and a much smaller group of life-course-persistent the quintessential case of “bad character”—implies that theoffenders, whose antisocial behavior begins in childhood individual’s antisocial behavior is due to fixed aspects ofand continues through adolescence and into adulthood. his or her personality. But, as we have suggested, thisAccording to Moffitt, the criminal activity of both groups assumption is difficult to defend as applied to individualsduring adolescence is similar, but the underlying causes of whose identity development is still under way. (Indeed, it istheir behavior are very different. Life-course-persistent of- for this very reason that the diagnosis of antisocial person-fenders show longstanding patterns of antisocial behavior ality disorder is not made prior to the age of 18; Americanthat appear to be rooted, at least in part, in relatively stable Psychiatric Association, 1994). Although the notion thatpsychological attributes that are present early in develop- some juvenile offenders are actual or “fledgling” psycho-ment and that are attributable to deficient socialization or paths has become increasingly popular in legal and psy-neurobiological anomalies. Adolescence-limited offending, chological circles, no data exist on the stability or continu-in contrast, is the product of forces that are inherent fea- ity of psychopathy between adolescence and adulthood. Intures of adolescence as a developmental period, including the absence of evidence that juveniles who, on the surface,peer pressure, experimentation with risk, and demonstra- resemble adult psychopaths (e.g., juveniles who are cal-tions of bravado aimed at enhancing one’s status in the lous, manipulative, and antisocial) actually become adultsocial hierarchy of the peer group. By definition, the causes psychopaths, it would seem unwise to use this label whenof adolescence-limited offending weaken as individuals describing an adolescent.mature into adulthood. Our analysis also clarifies why the crime of the adult In view of what we know about identity development, actor with “adolescent” traits warrants a different responseit seems likely that the criminal conduct of most young than does that of the typical young offender. Although mostwrongdoers is quite different from that of typical adult impulsive young risk takers who focus on immediate con-criminals. Most adults who engage in criminal conduct act sequences will mature into adults with different values,on subjectively defined preferences and values, and their some adult criminals have traits that are similar to theirchoices can fairly be charged to deficient moral character. younger counterparts. In the case of the adult, however, theThis cannot be said of typical juvenile actors, whose be- predispositions, values, and preferences that motivate himhaviors are more likely to be shaped by developmental or her most likely are characterological and are unlikely toforces that are constitutive of adolescence. To be sure, change predictably with the passage of time. Adolescentsome adolescents may be in the early stages of developing traits that contribute to criminal conduct are normative ina criminal identity and reprehensible moral character traits, adolescence, but they are not typical of adulthood. In anbut most are not. Indeed, studies of criminal careers indi- adult, these traits are often part of the personal identity ofcate that the vast majority of adolescents who engage in an individual who is not respectful of the values of thecriminal or delinquent behavior desist from crime as they criminal law and who deserves full punishment when he ormature into adulthood (Farrington, 1986). Thus the crimi- she violates its prohibitions.nal choices of typical young offenders differ from those ofadults not only because the choice, qua choice, is deficient Developmental Immaturity,as the product of immature judgment, but also because the Diminished Culpability, and theadolescent’s criminal act does not express the actor’s bad Juvenile Crime Policycharacter. The notion that individuals are less blameworthy The adolescent who commits a crime typically is not sowhen their crimes are out of character is significant in deficient in his or her decision-making capacity that the

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adolescent cannot understand the immediate harmful con- case or when other, irrelevant factors, such as a childlikesequences of his or her choice or its wrongfulness, as might physical appearance, lead others to view the offender asbe true of a mentally disordered person or a child. Yet, in relatively less blameworthy. This is a critical concern,ways that we have described, the developmental factors given the evidence that racial and ethnic biases influencethat drive adolescent decision making may predictably attitudes about the punishment of young offenders and thatcontribute to choices reflective of immature judgment and decision makers are more likely to discount the mitigatingunformed character. Thus, youthful criminal choices may impact of immaturity when judging the behavior of minor-share much in common with those of adults whose criminal ity youths (Bridges & Steen, 1998; Graham, 2002). Abehavior is treated as less blameworthy than that of the structural boundary that hinders adult adjudication oftypical offender, because their criminal behavior is out of young offenders and that prohibits the use of the deathcharacter, their decision-making capacities are impaired by penalty altogether for juveniles is justified as a counter-emotional disturbance, mental illness, or retardation, or weight to this pernicious influence.their criminal choices were influenced by unusually coer- Maintaining a categorical distinction between juvenilecive circumstances. and adult offenders does not mean that all youths are less If, in fact, adolescent offenders are generally less mature than adults in their decision-making capacity or thatculpable than their adult counterparts, how should the legal all juveniles are unformed in their identity development.system recognize their diminished responsibility? An im- Some individuals exhibit mature judgment at an early ageportant policy choice is whether immaturity should be (most are not offenders, however), and among others, an-considered on an individualized basis, as is typical of most tisocial tendencies that begin in childhood continue in amitigating conditions, or as the basis for treating young law stable pattern of criminal conduct that defines their adultviolators as a separate category of offenders (Scott & character. Adult punishment of psychologically matureSteinberg, 2003). youths might be fair if these individuals could be identified We believe that the uniqueness of immaturity as a with some degree of certainty. But we currently lack themitigating condition argues for the adoption of, or renewed diagnostic tools to evaluate psychosocial immaturity reli-commitment to, a categorical approach, under which most ably on an individualized basis or to distinguish youngyouths are dealt with in a separate justice system, in which career criminals from ordinary adolescents who will repu-rehabilitation is a central aim, and none are eligible for the diate their reckless experimentation as adults. As a conse-ultimate punishment of death. Other mitigators— emo- quence, litigating maturity on a case-by-case basis is likelytional disturbance and coercive external circumstances, for to be an error-prone undertaking. This risk of error isexample—affect criminal choices with endless variety and problematic as a general matter, but it is unacceptable whenhave idiosyncratic effects on behavior; thus, individualized the stakes are life and death. In our view, this risk of errorconsideration of mitigation is appropriate where these phe- argues against ever imposing the death penalty on youngnomena are involved. In contrast, the capacities and pro- offenders.cesses associated with adolescence are characteristic of A policy that treats immaturity as a mitigating condi-individuals in a relatively defined group, whose develop- tion is viable only to the extent that public protection is notment follows a roughly systematic course to maturity, and seriously compromised, and public safety concerns dictatewhose criminal choices are affected in predictable ways. that the small group of young recidivists who inflict largeAlthough individual variations exist within the age cohort amounts of social harm must be incapacitated as adults.of adolescence, of course, coherent boundaries can delin- That is not to say that we should “throw away the key”eate a minimum age for adult adjudication, as well as a when we incapacitate these youths, however. Given theperiod of years beyond this when a strong presumption of uncertainty of predicting adult character during adoles-reduced culpability operates to keep most youths in a cence, efforts should be made to protect against the iatro-separate system. The age boundary is justified if the pre- genic effects of incarceration in prison and to invest in thesumption of immaturity can be applied confidently to most future postincarceration lives of even serious chronic of-individuals in the group, as we believe is the case for fenders (Scott & Grisso, 1997).juveniles. Moreover, a categorical approach to the separa- Ongoing research on the links between brain matura-tion of juveniles and adults offers substantial practical tion and psychological development in adolescence hasefficiencies over one in which immaturity must be assessed begun to shed light on why adolescents are not as planful,on a case-by-case basis. thoughtful, or self-controlled as adults, and, more impor- A developmentally informed boundary restricting the tantly, it clarifies that these “deficiencies” may be physio-dispositions that can be imposed on juveniles who have logical as well as psychological in nature. Nevertheless, weentered the criminal justice system represents a precom- are a long way from comprehensive scientific understand-mitment to taking into account the mitigating character of ing in this area, and research findings are unlikely to everyouth in assigning blame. Without such a commitment, be sufficiently precise to draw a chronological age bound-immaturity often may be ignored when the exigencies of a ary between those who have adult decision-making capac-particular case engender a punitive response, as in the case ity and those who do not. Some of the relevant abilitiesof the accused sniper Lee Malvo. Indeed, absent such a (e.g., logical reasoning) may reach adultlike levels in mid-commitment, immaturity is likely to count as mitigating dle adolescence, whereas others (e.g., the ability to resistonly when the juvenile otherwise presents a sympathetic peer influence or think through the future consequences of